DETAILED ACTION
DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings are objected to because they are blurry.
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Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Abstract
The abstract of the disclosure is objected to because it is not directed to just the claimed methods but rather a product that is not claimed. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Title
The title of the invention is objected to because it is not directed to just the claimed methods but rather a product that is not claimed. A corrected title is required
Specification
The following guidelines illustrate the preferred layout for the specification of a utility application. These guidelines are suggested for the applicant’s use.
Arrangement of the Specification
As provided in 37 CFR 1.77(b), the specification of a utility application should include the following sections in order. Each of the lettered items should appear in upper case, without underlining or bold type, as a section heading. If no text follows the section heading, the phrase “Not Applicable” should follow the section heading:
(a) TITLE OF THE INVENTION.
(b) CROSS-REFERENCE TO RELATED APPLICATIONS.
(c) STATEMENT REGARDING FEDERALLY SPONSORED RESEARCH OR DEVELOPMENT.
(d) THE NAMES OF THE PARTIES TO A JOINT RESEARCH AGREEMENT.
(e) INCORPORATION-BY-REFERENCE OF MATERIAL SUBMITTED ON A READ-ONLY OPTICAL DISC, AS A TEXT FILE OR AN XML FILE VIA THE PATENT ELECTRONIC SYSTEM.
(f) STATEMENT REGARDING PRIOR DISCLOSURES BY THE INVENTOR OR A JOINT INVENTOR.
(g) BACKGROUND OF THE INVENTION.
(1) Field of the Invention.
(2) Description of Related Art including information disclosed under 37 CFR 1.97 and 1.98.
(h) BRIEF SUMMARY OF THE INVENTION.
(i) BRIEF DESCRIPTION OF THE SEVERAL VIEWS OF THE DRAWING(S).
(j) DETAILED DESCRIPTION OF THE INVENTION.
(k) CLAIM OR CLAIMS (commencing on a separate sheet).
(l) ABSTRACT OF THE DISCLOSURE (commencing on a separate sheet).
(m) SEQUENCE LISTING. (See MPEP § 2422.03 and 37 CFR 1.821 - 1.825). A “Sequence Listing” is required on paper if the application discloses a nucleotide or amino acid sequence as defined in 37 CFR 1.821(a) and if the required “Sequence Listing” is not submitted as an electronic document either on read-only optical disc or as a text file via the patent electronic system.
When there are drawings, there shall be a “brief description of the several views of the drawings” (See 37 C.F.R. 1.74.).
The section heading “brief description of the several views of the drawings” as set forth in 37 C.F.R. 1.74 is missing. Please correct.
The disclosure is objected to because of the following informalities: the abbreviations EPA, DHA and PUFA are set forth at paragraph [0002] of the Specification instead of the unabbreviated text. Please set forth the unabbreviated text in the first instance.
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Appropriate correction is required.
The disclosure is objected to because of the following informalities: the table at paragraph [0030] of the Specification is blurry. Please provide a clear table.
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The disclosure is objected to because paragraph [0047] has a typo. Please correct.
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The disclosure is objected to because of the following informalities: it is unclear what the numbers in the “Bibliography” are referring to at paragraph [0101] of the Specification. It appears this “Bibliography” language may have been pasted from a publication. It is unclear why this language is presented in this format as a patent application is not like a research paper. Please correct.
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Examiner’s Note
The claims and much of the Specification appear to be using technically inaccurate language to describe the invention.
The claims refer to fish feed including significant quantities of EPA, DHA and DPA.
EPA, DHA and DPA are fatty acids.
Applicant’s fish feed appears to have little to no EPA, DHA and DPA but rather significant quantities of esters with esterified fatty acid chains of EPA, DHA and DPA.
Fatty acids are not esters.
Furthermore, the weight calculations in the claims do not appear to account for the weight of the glycerol head in the triglycerides. Thus, the weight calculations in the claims do not literally appear to be accurate.
Table 8 of the Specification refers to FAME.
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It does not appear the feed that is fed to the fish contains FAME as set forth in Table 8 put rather triglycerides with esterified fatty acid chains.
The 10% to 40% EPA, DHA and DPA numbers in the claims appear to come at least in part from the FAME in Table 8 which does not appear to be technically correct. For example, it does not appear the fish feed contains 10% EPA, DHA and DPA, in the form of FAME.
Furthermore, FAME contains a terminal “H”.
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When the esterified fatty acid is part of the triglyceride there is no terminal “H” but rather a glycerol head.
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This extra terminal “H” may affect the weight calculations to a minimal amount.
Claim Objections
Claim 1 is objected to because of the following informalities: the abbreviations EPA, DHA and PUFA are set forth in lines 4-5 instead of the unabbreviated text. Please set forth the unabbreviated text in the first instance.
Claim 3 is objected to because of the following informalities: the abbreviations EPA, DHA and PUFA are set forth in line 5 instead of the unabbreviated text. Please set forth the unabbreviated text in the first instance.
Claim 4 is objected to because of the following informalities: a space is lacking between the following words “to22%” in line 2. Please correct.
Claim 5 is objected to because of the following informalities: the abbreviations EPA, DHA and PUFA are set forth in line 5 instead of the unabbreviated text. Please set forth the unabbreviated text in the first instance.
Claim 7 is objected to because of the following informalities: the abbreviations EPA, DHA and PUFA are set forth in lines 4-5 instead of the unabbreviated text. Please set forth the unabbreviated text in the first instance.
Claim 3 is objected to under 37 CFR 1.75 as being a substantial duplicate of claims 1, 5 and 7. All of the claims have identical method step while the other language, especially in the preambles, do not breathe any life into the method step. The scope of the claimed method is based on the method step(s). When two or more claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim 5 is objected to under 37 CFR 1.75 as being a substantial duplicate of claims 1, 3 and 7. All of the claims have identical method step while the other language, especially in the preambles, do not breathe any life into the method step. The scope of the claimed method is based on the method step(s). When two or more claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim 7 is objected to under 37 CFR 1.75 as being a substantial duplicate of claims 1, 3 and 5. All of the claims have identical method step while the other language, especially in the preambles, do not breathe any life into the method step. The scope of the claimed method is based on the method step(s). When two or more claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-18, 21 and 22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The phrase “to increase weight gain in farmed fish” in Claim 1, line 1 is vague and indefinite as it is unclear whether the weight is relative to a previous weight of the fish or is the weight gain relative to fish being fed a different diet.
The phrase “at least 10% to 40% EPA, DHA and DPA” in claim 1, lines 4-5 is vague and indefinite as it is unclear whether all three fatty acids are included or can there just be EPA or DHA or DPA or two of the three.
The phrase “at least 10% to 40% EPA, DHA and DPA” in claim 1, lines 4-5 is vague and indefinite as it is unclear whether there must be at least 10% EPA and at least 10% DHA and at least 10% DPA or must the total of all three be at least 10%.
The phrase “oil … comprises at least 10% to 40% EPA, DHA and DPA” in claim 1, lines 4-5 is vague and indefinite as it is unclear whether oil comprises “at least 10% to 40% EPA, DHA and DPA” as the claim literally states or does Applicant mean at least 10% to 40% of the fatty acids in the oil are at least 10% to 40% as EPA, DHA and DPA are fatty acids and not triglycerides.
EPA, DHA and DPA are fatty acids.
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A triglyceride is an ester with esterified fatty acids chains that may include esterified fatty acids chains of EPA, DHA and DPA.
Fatty acids and triglycerides are different chemical structures.
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It is very common in the oil art to refer to fatty acid percent (%) based on total fatty acids in the oil and not based on percent (%) of oil as Applicant set forth in the claims.
The weight of a triglyceride includes the weight of the head plus the weight of the fatty acid chains. While the weight of a fatty acid chain is just the weight of the fatty acid chains.
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The phrase “oil … comprises at least 10% to 40% EPA, DHA and DPA” in claim 1, lines 4-5 is vague and indefinite as it is unclear whether the “%” is “weight %” or “mole %”.
The phrase “to provide a higher final weight of farmed fish” in Claim 3, line 1 is vague and indefinite as it is unclear whether the weight is relative to a previous weight of the fish or is the higher weight relative to fish being fed a different diet.
The phrase “at least 10% to 40% EPA, DHA and DPA” in claim 1, lines 4-5 is vague and indefinite as it is unclear whether all three fatty acids are included or can there just be EPA or DHA or DPA or two of the three.
The phrase “wherein the weight gain is increased by 10-20% as compared to control farmed fish not fed the feed composition comprising oil from the genetically modified oilseed crop plant” in claim 2 is vague and indefinite as is unclear whether the “control farm fish” are fed anything at all and if they are fed what they are fed and if time period for comparison is 1 minute, 1 hour, 1 day, 1 month, 1 year or something else.
The phrase “final weight” in claim 3, line 1 is vague and indefinite as it is unclear whether final weight is at after one feeding or 100 feedings or 1,000 feedings or something else.
The phrase “at least 10% to 40% EPA, DHA and DPA” in claim 3, lines 4-5 is vague and indefinite as it is unclear whether there must be at least 10% EPA and at least 10% DHA and at least 10% DPA or must the total of all three be at least 10%.
The phrase “oil … comprises at least 10% to 40% EPA, DHA and DPA” in claim 3, lines 4-5 is vague and indefinite as it is unclear whether oil comprises “at least 10% to 40% EPA, DHA and DPA” as the claim literally states or does Applicant mean at least 10% to 40% of the fatty acids in the oil are at least 10% to 40% as EPA, DHA and DPA are fatty acids and not triglycerides.
EPA, DHA and DPA are fatty acids.
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A triglyceride is an ester with esterified fatty acids chains that may include esterified fatty acids chains of EPA, DHA and DPA.
Fatty acids and triglycerides are different chemical structures.
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It is very common in the oil art to refer to fatty acid percent (%) based on total fatty acids in the oil and not based on percent (%) of oil as Applicant set forth in the claims.
The weight of a triglyceride includes the weight of the head plus the weight of the fatty acid chains. While the weight of a fatty acid chain is just the weight of the fatty acid chains.
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The phrase “oil … comprises at least 10% to 40% EPA, DHA and DPA” in claim 3, lines 4-5 is vague and indefinite as it is unclear whether the “%” is “weight %” or “mole %”.
The phrase “wherein the final weight is increased by at least 9.5% to 22% as compared to control fish not fed the feed composition comprising oil from the genetically modified oilseed crop plant” in claim 4 is vague and indefinite as is unclear whether the “control farm fish” are fed anything at all and if they are fed what they are fed and if time period for comparison is 1 minute, 1 hour, 1 day, 1 month, 1 year or something else.
The phrase “to increase specific growth rate (SGR) in farmed fish” in Claim 5, line 1 is vague and indefinite as it is unclear whether the growth rate is relative to a previous growth weight of the fish or is the growth weight relative to fish being fed a different diet.
The phrase “at least 10% to 40% EPA, DHA and DPA” in claim 5, lines 4-5 is vague and indefinite as it is unclear whether all three fatty acids are included or can there just be EPA or DHA or DPA or two of the three.
The phrase “at least 10% to 40% EPA, DHA and DPA” in claim 5, lines 4-5 is vague and indefinite as it is unclear whether there must be at least 10% EPA and at least 10% DHA and at least 10% DPA or must the total of all three be at least 10%.
The phrase “oil … comprises at least 10% to 40% EPA, DHA and DPA” in claim 5, lines 4-5 is vague and indefinite as it is unclear whether oil comprises “at least 10% to 40% EPA, DHA and DPA” as the claim literally states or does Applicant mean at least 10% to 40% of the fatty acids in the oil are at least 10% to 40% as EPA, DHA and DPA are fatty acids and not triglycerides.
EPA, DHA and DPA are fatty acids.
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A triglyceride is an ester with esterified fatty acids chains that may include esterified fatty acids chains of EPA, DHA and DPA.
Fatty acids and triglycerides are different chemical structures.
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It is very common in the oil art to refer to fatty acid percent (%) based on total fatty acids in the oil and not based on percent (%) of oil as Applicant set forth in the claims.
The weight of a triglyceride includes the weight of the head plus the weight of the fatty acid chains. While the weight of a fatty acid chain is just the weight of the fatty acid chains.
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The phrase “oil … comprises at least 10% to 40% EPA, DHA and DPA” in claim 5, lines 4-5 is vague and indefinite as it is unclear whether the “%” is “weight %” or “mole %”.
The phrase “wherein the SGR is increased by at least 2-4%, including 2.8%, as compared to control fish not fed the feed composition comprising oil from the genetically modified oilseed crop plant” in claim 6 is vague and indefinite as is unclear whether the “control farm fish” are fed anything at all and if they are fed what they are fed and if time period for comparison is 1 minute, 1 hour, 1 day, 1 month, 1 year or something else.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 6 recites the broad recitation 2-4%, and the claim also recites 2.8% which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
The phrase “to provide DHA to farmed fish fillets” in Claim 7, line 1 is vague and indefinite as it is unclear whether Applicant means the fish fillets contains “DHA” as the claim literally states or does Applicant mean the fillets contain triglycerides with esterified DHA chains. DHA is a fatty acid while a triglyceride is an ester.
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The phrase “at least 10% to 40% EPA, DHA and DPA” in claim 7, lines 4-5 is vague and indefinite as it is unclear whether all three fatty acids are included or can there just be EPA or DHA or DPA or two of the three.
The phrase “at least 10% to 40% EPA, DHA and DPA” in claim 7, lines 4-5 is vague and indefinite as it is unclear whether there must be at least 10% EPA and at least 10% DHA and at least 10% DPA or must the total of all three be at least 10%.
The phrase “oil … comprises at least 10% to 40% EPA, DHA and DPA” in claim 7, lines 4-5 is vague and indefinite as it is unclear whether oil comprises “at least 10% to 40% EPA, DHA and DPA” as the claim literally states or does Applicant mean at least 10% to 40% of the fatty acids in the oil are at least 10% to 40% as EPA, DHA and DPA are fatty acids and not triglycerides.
EPA, DHA and DPA are fatty acids.
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A triglyceride is an ester with esterified fatty acids chains that may include esterified fatty acids chains of EPA, DHA and DPA.
Fatty acids and triglycerides are different chemical structures.
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It is very common in the oil art to refer to fatty acid percent (%) based on total fatty acids in the oil and not based on percent (%) of oil as Applicant set forth in the claims.
The weight of a triglyceride includes the weight of the head plus the weight of the fatty acid chains. While the weight of a fatty acid chain is just the weight of the fatty acid chains.
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The phrase “oil … comprises at least 10% to 40% EPA, DHA and DPA” in claim 7, lines 4-5 is vague and indefinite as it is unclear whether the “%” is “weight %” or “mole %”.
The phrase “method to provide farmed fish fillets … in fillets of said fish” in claim 7, lines 1-6 is vague and indefinite as it is unclear how the method can be directed to fish fillets when the claim does not include any method steps of producing any fish fillets.
The conversion language in lines 5-6 is a biological process that takes place in a fish and not a process carried out by the method step of feeding fish feed.
The phrase “the added oil” in claim 8, line 1 is vague and indefinite as it is unclear what this refers to. The claims do not previously set forth “added oil”, thus, a proper antecedent basis is lacking. Furthermore, it is unclear is this added oil is separate from the oil present in the feed or encompasses it.
The phrase “the added oil” in claim 9, line 1 is vague and indefinite as it is unclear what this refers to. The claims do not previously set forth “added oil”, thus, a proper antecedent basis is lacking. Furthermore, it is unclear is this added oil is separate from the oil present in the feed or encompasses it.
The phrase “at least 38.6% EPA, DHA and DPA” in claim 10, lines 2-3 is vague and indefinite as it is unclear whether there must be at least 38.6% EPA and at least 38.6% DHA and at least 38.6% DPA or must the total of all three be at least 38.6%.
The phrase “at least 12.9% EPA, DHA and DPA” in claim 11, lines 2-3 is vague and indefinite as it is unclear whether there must be at least 12.9% EPA and at least 38.6% DHA and at least 38.6% DPA or must the total of all three be at least 12.9%.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 13 recites the broad recitation 6 to 36 months, and the claim also recites 12 months which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
The phrase “oil … comprises at least 7.5% to 26.2% w/w EPA, 0.7% to 8.2% w/w DHA and 3.5% to 10.4% DPA” in claim 15, lines 1-3 is vague and indefinite as it is unclear whether oil comprises “7.5% to 26.2% w/w EPA, 0.7% to 8.2% w/w DHA and 3.5% to 10.4% DPA” as the claim literally states or does Applicant mean at least the percentages are per the total fatty acids.
A triglyceride is an ester with esterified fatty acids chains that may include esterified fatty acids chains of EPA, DHA and DPA. Fatty acids and triglycerides are different chemical structures.
It is very common in the oil art to refer to fatty acid percent (%) based on total fatty acids in the oil and not based on percent (%) of oil as Applicant set forth in the claims.
The weight of a triglyceride includes the weight of the head plus the weight of the fatty acid chains. While the weight of a fatty acid chain is just the weight of the fatty acid chains.
Claim 22 recites the limitation "the powder or pellets" in line 1. There is insufficient antecedent basis for this limitation in the claim. Please consider stating "the powdered feed or the pelleted feed".
Clarification and/or correction required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-9, 12, 16, 17 and 21 are rejected under 35 U.S.C. 102(a)(1) based upon a printed publication of Hossain et al. (2021), Optimizing the fatty acid profile of novel terrestrial oil blends in low fishmeal diets of rainbow trout (Oncorhynchus mykiss) yields comparable fish growth, total fillet n-3 LC-PUFA content, and health performance relative to fish oil; Aquaculture, Volume 545, 27 July 2021.
The claims are interpreted as being directed to methods of feeding fish. The language that is directed to intent and results are not interpreted as limiting the claims.
The % of EPA, DHA and DPA in the claims are interpreted as % of total fatty acids with the oil, including the esterified fatty acid chains of the triglycerides.
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The “increase weight” and “final weight” language in the claims is not interpreted as limiting as this language does not further define any method steps but rather generically refers to desired relative properties of fish without any relative basis of comparison after feeding.
The SGR language in the claims is not interpreted as limiting as this language does not further define any method steps but rather generically refers to a desired relative generic growth rate without any specificity or comparison.
The “fish fillets” language in the claims is not interpreted as limiting as this language does not further define any method steps and the claims do not state any fillets are produced.
Any biological processes that the fish may undergo are not interpreted as method steps of feeding fish and thus not limiting the feeding process.
Regarding claim 1, Hossain (2021) teaches a method to increase weight gain in farmed fish comprising providing a feed composition to said fish, wherein said feed composition comprises 6% to 40% w/w of an oil derived from a genetically modified oilseed crop plant, wherein the oil from the genetically modified oilseed crop plant comprises at least 10% to 40% EPA, DHA and DPA (See Abs., sections 1, 2.1-2.5 where the feed comprises 17% oil from genetically modified canola and 12.3% of the fatty acids in the oil are EPA, DHA and DPA.).
Regarding claim 2, Hossain (2021) inherently teaches wherein the weight gain is increased by 10-20% as compared to control farmed fish not fed the feed composition comprising oil from the genetically modified oilseed crop plant (See Abs., sections 1, 2.1-2.5 where the composition of the feed is the same thus the weight gain increase is within the range.).
Regarding claim 3, Hossain (2021) teaches a method to provide a higher final weight of farmed fish comprising providing a feed composition to said fish, wherein said feed composition comprises 6% to 40% w/w of an oil derived from a genetically modified oilseed crop plant, wherein the oil from the genetically modified oilseed crop plant comprises at least 10% to 40% EPA, DHA and DPA (See Abs., sections 1, 2.1-2.5 where the feed comprises 17% oil from genetically modified canola and 12.3% of the fatty acids in the oil are EPA, DHA and DPA.).
Regarding claim 4, Hossain (2021) inherently teaches wherein the final weight is increased by at least 9.5% to 22% as compared to control fish not fed the feed composition comprising oil from the genetically modified oilseed crop plant (See Abs., sections 1, 2.1-2.5 where the composition of the feed is the same thus the final weight increase is within the range.).
Regarding claim 5, Hossain (2021) teaches a method to increase specific growth rate (SGR) of farmed fish comprising providing a feed composition to said fish, wherein said feed composition comprises 6% to 40% w/w of an oil derived from a genetically modified oilseed crop plant, wherein the oil from the genetically modified oilseed crop plant comprises at least 10% to 40% EPA, DHA and DPA (See Abs., sections 1, 2.1-2.5 where the feed comprises 17% oil from genetically modified canola and 12.3% of the fatty acids in the oil are EPA, DHA and DPA.).
Regarding claim 6, Hossain (2021) inherently teaches wherein the SGR is increased by at least 2-4% as compared to control fish not fed the feed composition comprising oil from the genetically modified oilseed crop plant (See Abs., sections 1, 2.1-2.5 where the composition of the feed is the same thus the SGR is increased is within the range.).
Regarding claim 7, Hossain (2021) teaches a method to provide DHA to farmed fish fillets comprising providing a feed composition to said fish, wherein said feed composition comprises 6% to 40% w/w of an oil derived from a genetically modified oilseed crop plant, wherein the oil from the genetically modified oilseed crop plant comprises at least 10% to 40% EPA, DHA and DPA, wherein said EPA and DPA from said plant oil is converted to DHA that is deposited in said fillets of said fish (See Abs., sections 1, 2.1-2.5 where the feed comprises 17% oil from genetically modified canola and 12.3% of the fatty acids in the oil are EPA, DHA and DPA.).
Regarding claim 8, Hossain (2021) teaches wherein the added oil in the feed composition comprises up to 50% added oil from plant oil (See Abs., sections 1, 2.1-2.5 where the feed comprises 17% oil from genetically modified canola.).
Regarding claim 9, Hossain (2021) teaches wherein the added oil in the feed composition is 100% added oil from plant oil (See Table 3, gmo canola oil.).
Regarding claim 12, Hossain (2021) teaches wherein the feed composition is provided to said fish from first feeding to harvest (See section 2.3.).
Regarding claim 16, Hossain (2021) teaches wherein the feed composition does not comprise more than 50% added marine oil (See Table 3, 10% fish meal.).
Regarding claim 17, Hossain (2021) teaches herein no more than 20% marine oil is present in the feed composition (See Table 3, 10% fish meal with marine oil less than the entire meal.).
Regarding claim 21, Hossain (2021) teaches wherein the feed composition is pelleted (See section 2.2.).
Claim 1 is rejected under 35 U.S.C. 102(a)(1) based upon a printed publication of Betancor et al. (2016); Replacement of Marine Fish Oil with de novo Omega‑3 Oils from Transgenic Camelina sativa in Feeds for Gilthead Sea Bream (Sparus aurata L.) (2016).
The claims are interpreted as being directed to methods of feeding fish. The language that is directed to intent and results are not interpreted as limiting the claims.
The % of EPA, DHA and DPA in the claims are interpreted as % of total fatty acids with the oil, including the esterified fatty acid chains of the triglycerides.
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The “increase weight” language in the claims is not interpreted as limiting as this language does not further define any method steps but rather generically refers to desired relative properties of fish without any relative basis of comparison after feeding.
Regarding claim 1, Betancor (2016) teaches a method to increase weight gain in farmed fish comprising providing a feed composition to said fish, wherein said feed composition comprises 6% to 40% w/w of an oil derived from a genetically modified oilseed crop plant, wherein the oil from the genetically modified oilseed crop plant comprises at least 10% to 40% EPA, DHA and DPA (See Abs., pp. 1-3, Table 1, DCO formulation, where the feed comprises 11.53 % oil from genetically modified camelina and 14.33% of the fatty acids in the oil are EPA, DHA and DPA.).
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Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 10, 11, 13-15, 18 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hossain et al. (2021).
Regarding claim 10, Hossain (2021) teaches the method discussed above, however, fails to teach wherein the oil from the genetically modified oilseed crop plant comprises at least 38.6% EPA, DHA and DPA.
Applicant does not set forth any non-obvious unexpected results for providing one fatty acid profile over another. It would have been foreseeable and obvious prior to the earliest effective filing date that harvesting fish from the ocean that have relatively high amounts of EPA, DHA and DPA is not ecologically responsible and sustainable. If the oceans are overfished, then the number of fish in the ocean will become scarce. Furthermore, there is not an adequate supply of fish with tissue rich in EPA, DHA and DPA to feed other fish. It therefore would have been foreseeable and obvious to adjust the amount of EPA, DHA and DPA in plant sources to mimic, and or have sufficient concentration, including amounts that correspond to the amounts set forth in the claims, to provide a farm raised fish with desirable EPA, DHA and DPA. The selection of concentrations would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 11, Hossain (2021) teaches the method discussed above, however, fails to teach wherein the oil from the genetically modified oilseed crop plant comprises at least 12.9% EPA, DHA and DPA.
Applicant does not set forth any non-obvious unexpected results for providing one fatty acid profile over another. It would have been foreseeable and obvious prior to the earliest effective filing date that harvesting fish from the ocean that have relatively high amounts of EPA, DHA and DPA is not ecologically responsible and sustainable. If the oceans are overfished, then the number of fish in the ocean will become scarce. Furthermore, there is not an adequate supply of fish with tissue rich in EPA, DHA and DPA to feed other fish. It therefore would have been foreseeable and obvious to adjust the amount of EPA, DHA and DPA in plant sources to mimic, and or have sufficient concentration, including amounts that correspond to the amounts set forth in the claims, to provide a farm raised fish with desirable EPA, DHA and DPA. The selection of concentrations would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 13, Hossain (2021) teaches the method discussed above, however, fails to teach wherein the feed composition is provided to said fish for 6 to 36 months, including 12 months.
Applicant does not set forth any non-obvious unexpected results for providing one feeding time over another. It would have been foreseeable and obvious prior to the earliest effective filing date to feed the fish for a time, including the times claimed, until they are ready to harvest. The selection of times would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 14, Hossain (2021) teaches the method discussed above, however, fails to teach wherein the feed composition is provided to said fish at starting weight of from about 10-30 g to a finishing weight about 800-1200 g.
Applicant does not set forth any non-obvious unexpected results for providing one starting and finishing weight over another. It would have been foreseeable and obvious prior to the earliest effective filing date to feed the fish at appropriate sizes to provide fish that are suitable for consumption. The selection of weights would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 14, Hossain (2021) teaches the method discussed above including wherein the oil from the genetically modified oilseed crop plant comprises at least 7.5% to 26.2% w/w EPA, 0.7% to 8.2% w/w DHA (See Abs., sections 1, 2.1-2.5.), however, fails to teach and 3.5% to 10.4% DPA.
Applicant does not set forth any non-obvious unexpected results for providing one fatty acid profile over another. It would have been foreseeable and obvious prior to the earliest effective filing date that harvesting fish from the ocean that have relatively high amounts of EPA, DHA and DPA is not ecologically responsible and sustainable. If the oceans are overfished, then the number of fish in the ocean will become scarce. Furthermore, there is not an adequate supply of fish with tissue rich in EPA, DHA and DPA to feed other fish. It therefore would have been foreseeable and obvious to adjust the amount of EPA, DHA and DPA in plant sources to mimic, and or have sufficient concentration, including amounts that correspond to the amounts set forth in the claims, to provide a farm raised fish with desirable EPA, DHA and DPA. The selection of concentrations would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 18, Hossain (2021) teaches the method discussed above, however, fails to teach wherein the fish are salmonids.
Applicant does not set forth any non-obvious unexpected results for feeding one type of fish over another. It was very well known in the art that salmon are a very popular DHA-rich ocean fish. It would have been foreseeable and obvious prior to the earliest effective filing date to feed salmon fish DHA-rich feed like trout to provide food that people like. The selection of salmon or other fish would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 22, Hossain (2021) teaches the method discussed above, however, fails to teach wherein the powder or pellets are oil coated.
It was very well known in the art to coat fish feed with oil to bind the dry materials together so the feed does not fall apart and to provide a feed that does not readily dissolve in water where the fish live. The selection of oil coating would have been within the skill set of a person having ordinary skill in the art.
Conclusion
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/BRENT T O'HERN/ Primary Examiner, Art Unit 1793 April 7, 2026
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